Master Services Agreement

MASTER SERVICES AGREEMENT

This Master Services Agreement is made and entered into as of ___________ (“Effective Date”) by and between: 

(1) CYWARE LABS, INC. a corporation incorporated in the state of Delaware (“Cyware”); and 

(2) Client, an entity legally formed(“Client”).

Cyware and Client (which includes Client’s authorized users) are each a “Party” and collectively the “Parties.” This Master Services Agreement (“Agreement”) sets forth the terms and conditions governing the software, software-as-a-service, deliverables, support, or Documentation (any media provided by Cyware for use with Offerings) or rights for which Client has contracted (“Offerings”) provided by Cyware as set forth in the applicable Schedule(s) and the applicable Ordering Document(s). This Agreement is a Master Agreement comprising and incorporating by reference: this signature page, the General Terms, and any Schedules marked below. When Client wishes to purchase or license Offerings, Client and Cyware will execute an ordering document detailing the Offerings (“Ordering Document”) and setting forth any additional Offerings and costs between the Parties. Client purchase orders are identified only to authorize payment and any terms or conditions in any Client purchase order (or other similar Client document) are not a part of this Agreement or controlling. 

1. Schedules. The Schedules marked as indicated below will be the applicable Schedules included within this Agreement and are incorporated into this Agreement by reference. 

__ Cyware Software Schedule 

__ Cyware Partner Schedule 

__ Cyware Professional Services Schedule 

__ Cyware MSSP Terms Exhibit A 

CORPORATE ACCEPTANCE AND APPROVAL:

GENERAL TERMS & CONDITIONS

1. Fees and Payment.

1.1 Fees. Client will pay to Cyware the fees and charges for the Offerings set forth on each applicable Ordering Document (“Fees”), without deduction or set-off. Unless otherwise agreed in an Ordering Document, for multi-year Orders, the Client will issue a PO for all years with Year 1 being due and payable Net 30 from date of first invoice. Subsequent years will be invoiced and due 30 days before the anniversary date.  For clarity: Year 1 is payable Net 30 upon first invoice. Year 2 will be invoiced and due 30 days prior to the anniversary date and the start of Year 2, and so on.

1.2 Payment Terms. Except as otherwise expressly set forth in any Ordering Document, all invoices from Cyware for Fees will be due and payable Net 30 from the date of invoice. Client will render payment by ACH only. If Client’s account is past due, then Cyware reserves the right to discontinue access to the Offerings until all past due invoices are paid in full.  Client assumes all responsibility associated with any discontinuation of services due to failure to make payment.  Client accounts that are more than thirty (30) days past due will be charged a monthly percentage fee of three percent (3%) per month (or the maximum amount allowed by law) and such invoice plus interest will be compounded monthly until the invoice is paid in full. Should any Client account remain past due for longer than ninety (90) days, Cyware may pursue formal collection action at Cyware’s discretion and at Client’s cost.

1.3 Taxes. Client is responsible for all taxes, including but not limited to, sales, use, excise, value-added, services, consumption and other similar taxes that are assessed on Offerings or Fees. 

(a) If Client is entering into this Agreement under a business entity incorporated in India, then pursuant to the Indian Income Tax Act of 1961, any income tax for goods and services must be deducted at the source.  As such, Cyware shall deduct all applicable income tax and other taxes at Subscriber’s source (also known as TDS) which shall then be deposited by the party deducting said taxes.

2. Term and Termination. 

2.1 Term. This Agreement will be in effect from the Effective Date and will continue until the end of the term of the last signed Ordering Document (“Schedule Term”) (excluding professional services and other bespoke Ordering Documents) at which time it will auto renew for one year and will continue to do so on each end of term date until terminated in accordance with the provisions set forth in this Agreement, whichever is first.  Once an Ordering Document is entered into by Client, the Ordering Document cannot be canceled at any time but can be terminated subject to Section 2.2 of this Agreement.

2.2 Termination for Cause. Either Party may terminate this Agreement or any Ordering Document if the other Party: (i) becomes insolvent or bankrupt or admits its inability to pay its debts as they mature, otherwise demonstrates a lack of financial integrity, or makes an assignment for the benefit of its creditors and is under control of Court-appointed receivership; or (ii) commits a material breach of any provision of this Agreement or Ordering Document and does not remedy such breach within thirty (30) days after receipt of written notice from the non-defaulting Party. Such notice must be immediately provided upon occurrence of the act giving rise to the cause claim and any delay will forfeit such claim.  

2.3 Effects of Termination. If a Party terminates this Agreement in accordance with Section 2.2, all Ordering Documents will automatically terminate. Termination of an individual Ordering Document pursuant to Section 2.2, does not automatically terminate this Agreement or any other Ordering Document. Upon expiration or termination of any Ordering Document, (i) Client’s use of and access to the Offerings and Cyware’s performance of all Offerings under the terminated Ordering Document will cease; and (ii) all Fees and other amounts owed under the terminated Ordering Document will be immediately due and payable by Client, including without limitation, all Fees incurred under any terminated Ordering Document up through the date of termination for any Offerings completed and a pro-rated portion of the Fees incurred (excluding Professional Services) for any partially completed Offerings. Any client-hosted (meaning that the client pays a third-party hosting provider, or has an on premise installation) instance will require compliance with the Cyware Decommissioning Policy.  If the Cyware instance is not client-hosted, the Decommissioning Policy is not applicable to this Agreement.  

2.4 Survival. This Section and Sections 1 (Fees and Payment), 2.3 (Effects of Termination), 3 (Confidentiality), 4.6 (Ownership/Intellectual Property), 4.7 (Cyware Developments), 6 (Representations and Warranties), 7 (Indemnification), 8 (Limitation of Liability), and 9 (Miscellaneous), and any other terms to the extent stated, or necessarily implied by their nature, to survive termination or expiration will survive any termination or expiration of this Agreement and any Ordering Document. In addition, any payment obligations that have accrued under this Agreement or any Ordering Document will remain in full force and effect until they are satisfied by Client in full.  Confidential Information will survive for three (3) years after termination of this Agreement.  All rights pertaining to Intellectual Property will survive for as long as the relevant law allows.

2.5 Offerings Suspension. Upon reasonable notice, Cyware may temporarily suspend the access to any portion or all of the Offerings (a “Suspension”) without any liability to Cyware if Cyware reasonably determines that the Cyware Acceptable Use Policy has been violated in any manner. Cyware will use commercially reasonable efforts to provide written notice of any Suspension and to provide updates regarding resumption of access to the Offerings following any Suspension. Cyware will use commercially reasonable efforts to resume providing access to the Offerings as soon as logically possible, after the event giving rise to the Suspension is cured. Cyware will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that may incur as a result of a Suspension.

3. Confidentiality.  

3.1 All non-public, confidential, or proprietary information disclosed by a Party to the other Party in performance of this Agreement (“Confidential Information”) will be protected using the same degree of care, but no less than reasonable care, as the receiving Party (“Recipient”) uses to protect its own Confidential Information and will not, without the written consent of the disclosing Party, be used or disclosed except for the purpose of, or as permitted by, this Agreement and only by the receiving Party’s Affiliates, employees, and service providers who are bound by substantially similar obligations of confidentiality and no less restrictive obligations of confidentiality and have a need to know. “Affiliate” means, with respect to a party, any entity or individual that directly or indirectly controls, is controlled by, or is under common control with such party. Each Party will be responsible for breaches of the confidentiality obligations by its Affiliates, employees or service providers. The receiving Party will keep Confidential Information confidential for 3 years from disclosure. Except as explicitly set out in this Agreement, information will not be Confidential Information unless (i) marked “CONFIDENTIAL” or similar at disclosure; (ii) disclosed orally or visually but identified as confidential at disclosure and designated as confidential, nonpublic, or proprietary, or (iii) should reasonably be understood to be confidential given the nature of the information as proprietary, sensitive or non-public. 

3.2 Confidential Information excludes information that: (i) was already known to recipient without restriction; (ii) is publicly available through no fault of recipient; (iii) is rightfully received by recipient from a third-party without a duty of confidentiality; or (iv) is independently developed without use of the Confidential Information. A Party may disclose Confidential Information when compelled to do so by law and if so, that party will, to the extent legally permitted, provide prior notice to the other Party and allow that Party a reasonable opportunity to contest or limit disclosure. This Agreement is Confidential Information. Neither Party may make any announcement or publication relating to this Agreement without the other Party’s prior written approval, except as required by law or to correct any misstatements made by the other Party. Cyware may list Client and its logo as a customer on Cyware’s website and in marketing materials, use cases, or white papers. 

3.3 Termination. In addition, within thirty (30) days of the effective date of termination, Recipient will (i) return to Discloser, or at Discloser’s option, Recipient will destroy all items of Confidential Information then in Recipient’s possession or control (including but not limited to software Offerings, if Client environment is not deployed in a Cyware-managed environment), including any copies, extracts or portions thereof, and (ii) upon request, will certify in writing to Discloser that it has complied with the foregoing.

3.4 Feedback. “Feedback” is any information or suggestion provided by Client to Cyware regarding any changes, improvements, features or functionalities of any Offering. Cyware is free to use Feedback without any restriction, payment, or attribution to Client. 

4. Client Content.

4.1 Definition. “Client Content” means the information, data, or content provided to Cyware by the Client or any third party at the request of Client, including that which may be processed, stored, or transmitted by Cyware or its technology in the course of providing the Offerings. Client will be solely responsible for the accuracy, quality, legality, reliability, appropriateness of and the Parties’ rights to use all Client Content under this Agreement. Client will be responsible for obtaining any consents and other rights necessary to collect, submit, use, and process Client Content in connection with the Offerings, and to use and display the Client Content in any internal or Client-facing reports. 

4.2 License. Client hereby grants Cyware a non-exclusive, worldwide, royalty-free license to use, reproduce, display, and modify Client Content during the term of this Agreement for the purpose of providing the Offerings. Client acknowledges and agrees that Cyware owns and retains all Intellectual Property Rights in, to, or covering any improvements, enhancements, updates, upgrades, or derivatives to the Offerings, or any other products, offerings, or technology, created, developed or authored using anonymized Client Content. “Intellectual Property Rights” means all rights under the laws of any jurisdiction worldwide including but not limited to: (a) copyrights; (b) rights in trade secrets; (c) patents; (d) trademarks; (e) database rights; (f) moral rights; and (g) all other intellectual property rights. Cyware may change any deployment mechanism to improve security, architecture, etc. and provide updates to the Offerings from time to time at its discretion. Cyware hereby grants Client, solely for the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Documentation and to make a reasonable number of copies of the Documentation solely for its own business purposes.  Client shall include the original Documentation copyright notice and any other notices upon any copies made by Client.  

4.3 Prohibited Use. Excluding Client registration information, Client will not provide any Client Content with personally identifiable information (“PII”) and will ensure that any such data will be aggregated and anonymized by Client before Client utilizes such data with the Offerings. Any use not in accordance with Acceptable Use Policy located at https://www.cyware.com/legal/end-user-terms-and-conditions-of-use is prohibited. Client will not use the Offerings, to collect, or otherwise transmit to Cyware, any sensitive PII or personal health information (“PHI”) including, but not limited to, HIPAA protected/health related information, passwords, credit or debit card number (or other PCI protected information), Social Security numbers, financial account numbers or other financial information, driver’s license, passport or other government identification numbers, or biometric data. Client will not use the Offerings to collect or otherwise transmit to Cyware any financial data in a manner that would require Cyware’s Offerings to be PCI compliant or any health data that would require Cyware’s Offerings to be HIPAA compliant. Client is solely responsible for any Client Content inputted into any Offerings and Client is solely responsible and liable for any and all Client Content, including any PII, HIPAA protected/health related information, and financial or payment card information, input into any Cyware Offerings. The geographic national region in which Client’s signing legal entity is registered (the “Region”), is the Region in which End Users may access the Offerings.  Any access granted to End Users outside of this Region, or extension of access to an affiliate entity or End User outside of the known Offerings compliance affirmations (i.e. Client merges or acquires an interest in the healthcare or financial industries thereby requiring additional compliance affirmations by Cyware as a vendor) requires the advance written consent of Cyware.

4.4 Aggregated Statistics & Use Rights. Notwithstanding anything to the contrary in this Agreement, Cyware may monitor Client’s use of the Offerings, collect, and compile data and information related to Client’s use of the Offerings in an aggregated and anonymized manner including to compile statistical and performance information related to the provision and operation of the Offerings (“Aggregated Statistics”). All right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, are retained solely by Cyware. Client acknowledges that Cyware may compile Aggregated Statistics based on Client Content. Client agrees that Cyware may use Aggregated Statistics to the extent and in the manner permitted under law; provided, however, that such Aggregated Statistics are anonymized and do not identify Client or Client’s Confidential Information. 

4.5 Consumption.  Client acknowledges that the Offerings shall be utilized in compliance with the Cyware platform limits, as described in the applicable online Cyware technical documentation located at https://techdocs.cyware.com/.  In the event the Offerings are not available to client due to a failure to comply with consumption limits or payment terms, Client assumes all responsibility and indemnification responsibility caused by unavailable Offerings.  

4.6 Ownership. Client acknowledges that the Offerings, and all “Intellectual Property” therein, are considered Confidential Information of Cyware and are the sole and exclusive property of Cyware and its licensors. Cyware acknowledges that the Client Content is the sole and exclusive property of Client and its licensors. Each Party retains all rights not expressly granted in this Agreement.

4.7 Cyware Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Cyware, whether solely or jointly, or by subcontractors of Cyware, including without limitation, in connection with Cyware’s performance of the Offerings hereunder, including any and all deliverables (collectively, “Cyware Developments”), including all Intellectual Property Rights in, to or covering the foregoing, will be the sole and exclusive property of Cyware. Client hereby assigns, and agrees to assign, to Cyware all right, title and interest in and to such Cyware Developments, including without limitation all the Intellectual Property Rights in, to or covering the foregoing, without the necessity of any further consideration. Cyware Developments will be part of the Offering for the purposes of this Agreement.

4.8 Access to Client Systems. “Client System” means Client’s internal website(s), systems, servers, and other equipment and software used in the conduct of its business. “Client Instance” means any service (cloud or other), software, or hardware utilized to access Offerings. Client grants to Cyware a limited right during the term of this Agreement (except as expressly provided below) to access Client’s Instance(s) in order to provide the Offerings, including but not limited to support of the Offerings in the production environment. Client will be responsible for any changes to Client environment or Client Systems, including upgrades or version modifications to said Client Systems, and any changes or failures of third-party integrations or other software utilized by Client with Offerings. Any request for Cyware support with regard to Client environment or Client Systems will require a new Ordering Document related to the same.

4.9 Third-Party Products: The Offerings may contain, or otherwise enable, link to and integrations with external service providers and SaaS service providers (“Third-Party Products”). Cyware provides and/or enables third-party integrations. Cyware has no responsibility for the content, functionality, or availability (including any service level agreements) of such Third-Party Products (or any products or other services associated therewith). Access to any Third-Party Products linked to the Offerings is at your own risk, and Cyware is not responsible for the accuracy, performance, or reliability of any information, data, opinions, advice, or statements made by, on, or through such Third-Party Products. Client is solely responsible for that Third-Party Product having access to its data, including Client Content, and connections contained therein, and for any/all actions that the Third-Party Products may take on Client’s behalf. Client’s use of any Third-Party Product is subject to the terms applicable to such Third-Party Product. Client may not direct users to any content or information that would constitute a violation of these Terms or any terms applicable to such Third-Party Products. 

5. Security and Data Processing.

5.1 Cyware Data Security Obligations. Cyware will use commercially reasonable efforts to provide and maintain data security measures, consistent with generally accepted industry standards and practices, designed to protect the security of Client Content in Cyware’s possession and control from unauthorized disclosure. Cyware will comply with those privacy and security laws governing Cyware’s handling of Client Content that are applicable specifically to Cyware and Cyware Offerings. 

5.2 Client Content Security Obligations. Client must: (a) take appropriate steps to protect Client Content; (b) provide any necessary notices to and obtain any legally required consents from Client’s Users; (c) notify Cyware promptly if Client believes Offerings have been compromised; and (d) reasonably cooperate with Cyware to resolve issues related to Client’s use of the Offerings. Client is responsible for ensuring that the Offerings are appropriate for Client’s intended use. Client is responsible for any use of the Offerings that occurs under its login credentials. Neither Client nor any User may circumvent or otherwise knowingly interfere with any user authentication or security of the Offerings. Client will promptly notify Cyware of any breach, or attempted breach, of security by the Users known to Client.

5.3 Security Incidents. “Security Incident” means any act or attempt to disrupt, misuse, or gain unauthorized access to any system or electronic facilities or operations that results in a loss, alteration, or disclosure of data, system downtime, or degradation or loss of operation of the Offerings or relating to the Offerings.  In the event of a Security Incident, Client shall designate two (2) or more employees, executives, or agents (the “Contact Person(s)”) who will promptly respond to the Security Incident(s) and take recommended actions to mitigate harm to Client’s network, and shall ensure that only this Contact Person(s) will communicate with Cyware to initiate or manage Security Incident responses.  After a Cyware investigation and finding of unauthorized access to Client Content, Cyware will: (i) notify Client without undue delay after becoming aware of a Security Incident affecting Client, and (ii) make reasonable efforts to identify the cause of the Security Incident, mitigate the effects, and remediate the cause, to the extent within Cyware’s reasonable control. Client agrees that Cyware’s notification of a Security Incident is not an acknowledgement by Cyware of its fault or liability, and Client’s sole and exclusive remedy with respect to any Security Incident caused by Offerings provided by Cyware is replacement or repair of defective products or re-performance of defective Offerings under the applicable warranty in this Agreement. Security Incidents do not include unsuccessful attempts or activities that do not compromise the security of Client Content, including unsuccessful login attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems. Any information provided or made available to Client in connection with Cyware’s obligations under this Section 5.3 will be deemed Cyware’s Confidential Information.

5.4 Data Processing. Cyware has the permissive right to engage in data processing as is outlined in the Data Processing Agreement which may be attached if applicable.

6. Representation and Warranties. 

6.1 Cyware’s Representations and Warranties. Cyware represents and warrants that: it will provide the Offerings using personnel of required skill, experience, and qualifications in a professional manner using generally recognized industry standards, reasonable efforts, and will devote adequate resources to meet its obligations under this Agreement. Cyware uses commercially reasonable standards to deliver source code free of any virus, ransomware, or any other harmful computer code. Cyware will be responsible and liable for the acts, omissions, or conduct of its employees, agents, contractors, or representatives performed within the scope of their authority or employment in connection with this Agreement. If the Offerings fail to comply with the foregoing warranty, Client shall provide written notice to Cyware within five (5) days of discovering such warranty claim or such claim shall be deemed waived, and such notice will describe in reasonable detail the nature of the warranty claim. In such an event, Cyware shall use reasonable efforts to repair or rectify such warranty claim.  Cyware shall refund to Client, on a pro-rata basis as applicable, the portion of Fees paid to Cyware prior to termination applicable to such claim(s) after the termination date. Cyware makes no guarantees regarding the effectiveness of the Offerings with respect to Client’s overall cybersecurity program due to Cyware’s lack of control over Client’s operations, personnel, and Information Systems. Cyware is not responsible or liable for any issues, problems, unavailability, delay, or Security Incidents arising from or related to: (i) force majeure events as described below; (ii) the public internet and communications networks; (iii) data, software, hardware, Offerings, telecommunications, infrastructure, or networking equipment not provided by Cyware or acts or omissions of third parties Client retains; (iv) Client’s negligence or failure to use the latest version or follow published documentation; (v) modifications or alterations not made by Cyware or services Cyware does not perform; (vi) breach, loss, or corruption of data; (vii) unauthorized access via Client credentials; or (viii) Client’s failure to use commercially reasonable administrative, physical, and technical safeguards to protect its systems, facilities, operations, integrations, or data or follow industry-standard or other mutually agreed upon security practices. THE REMEDY SET FORTH IN THIS SECTION WILL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY AND CYWARE’S SOLE OBLIGATION AND LIABILITY FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.

6.2 Client’s Representations and Warranties. Client represents and warrants that it will (i) use commercially reasonable administrative, physical, and technical safeguards to protect its systems, facilities, operations or data or follow industry-standard or other mutually agreed upon security practices; (ii) update to the latest version of relevant software and follow the current documentation for the same; (iii) make no modifications or alterations to any hardware or software comprising the Offerings without Cyware’s express written permission. Client will be responsible and liable for the acts, omissions, or conduct of its employees, agents, contractors, or representatives performed within the scope of their authority or employment in connection with this Agreement. Client and its personnel are solely responsible for maintaining the confidentiality of, and all use of, and actions taken using any passwords and access rights assigned to Client or its Affiliates or personnel in connection with any of the Offerings. Client further represents and warrants that (i) Client owns or otherwise has and will have the necessary rights and consent in and relating to the Client Content so that, as processed by and on behalf of Cyware under this Agreement, it does not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights, of any third party or violate any applicable law, rule or regulation; and (ii) Client Content does not and will not contain any virus, ransomware or any other harmful computer code. Client represents and warrants that it maintains industry-appropriate levels of insurance including but not limited to workers’ compensation, etc.

6.3 Disclaimer. THE CYWARE OFFERINGS AND THIRD-PARTY PRODUCTS ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND CLIENT’S USE OF THE OFFERINGS IS OTHERWISE AT ITS OWN RISK. THE OFFERINGS ARE NOT INTENDED TO PREVENT OR PROTECT AGAINST SECURITY INCIDENTS.  CYWARE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  CYWARE DOES NOT WARRANT THAT THE OFFERINGS ARE OR WILL BE UNINTERRUPTED OR ERROR FREE. CLIENT ACKNOWLEDGES AND AGREES THAT THE OFFERINGS (a) (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS (OR “BUGS”) AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, CLIENT MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE OFFERINGS; AND (b) MAY INCLUDE THIRD-PARTY INTEGRATIONS, OPEN SOURCE SOFTWARE (OR “OSS”), PRODUCTS AND/OR OFFERINGS CONTROLLED BY THIRD PARTIES WHICH ARE SUBJECT TO CHANGE IN LICENSE USE TERMS AND SERVICE STANDARDS FROM TIME TO TIME WITHOUT NOTICE AND PROVIDED UNDER THE TERMS OF SUCH THIRD-PARTY. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT CYWARE DOES NOT WARRANT OR GUARANTEE THAT OFFERINGS WILL PREVENT DATA BREACHES, UNAUTHORIZED ACCESS TO CLIENT SYSTEMS OR SECURITY INCIDENTS. CLIENT ACKNOWLEDGES THAT IT WILL NOT HAVE ANY RIGHT OR REMEDY RISING OUT OF ANY REPRESENTATION, WARRANTY OR OTHER STATEMENT NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. “THIRD-PARTY PRODUCT” MEANS ANY PRODUCT, TECHNOLOGY OR SERVICE THAT IS PROVIDED IN CONNECTION WITH OFFERINGS (WHETHER FROM CYWARE OR A THIRD PARTY) THAT IS NOT OWNED EXCLUSIVELY BY CYWARE. CYWARE DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY PROBLEMS, UNAVAILABILITY, DELAY, OR SECURITY INCIDENTS ARISING FROM OR RELATED TO: (i) CONDITIONS OR EVENTS REASONABLY OUTSIDE OF CYWARE’S CONTROL; (ii) CYBERATTACK; (iii) THE PUBLIC INTERNET AND COMMUNICATIONS NETWORKS; (iv) DATA, SOFTWARE, HARDWARE, SERVICES, TELECOMMUNICATIONS, INFRASTRUCTURE OR NETWORKING EQUIPMENT NOT PROVIDED BY CYWARE, OR ACTS OR OMISSIONS OF THIRD PARTIES CLIENT RETAINS OR UTILIZES AS A THIRD-PARTY PRODUCT/SERVICE PROVIDER; (v) CLIENT OR ITS USERS’ NEGLIGENCE OR FAILURE TO USE THE LATEST VERSION OF THE SOFTWARE OR FOLLOW PUBLISHED DOCUMENTATION, INCLUDING ANY APPLICABLE END OF LIFE POLICY; (vi) MODIFICATIONS OR ALTERATIONS NOT MADE BY CYWARE; (vii) LOSS OR CORRUPTION OF DATA; (viii) UNAUTHORIZED ACCESS VIA CLIENT’S CREDENTIALS;  (ix) CLIENT’S FAILURE TO USE COMMERCIALLY REASONABLE ADMINISTRATIVE, PHYSICAL AND TECHNICAL SAFEGUARDS TO PROTECT CLIENT’S SYSTEMS OR DATA OR FOLLOW INDUSTRY-STANDARD SECURITY PRACTICES; (x) CLIENT SUSPENDING ACCESS TO CLIENT SYSTEMS FOR ANY REASON, SUCH THAT IT MAY CAUSE A LOSS OF ACCESS OR DELAY IN PROVIDING OFFERINGS (INCLUDING ANY PROFESSIONAL SERVICES) TO CLIENT.  CYWARE DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES OR LOSS WHICH MAY BE RELATED TO OR CAUSED BY ANY USE OF A NON-PRODUCTION ENVIRONMENT CYWARE LICENSE.

6.4 Cyware has no liability, for: (a) Client’s use of Software or Offerings, including verification of results obtained from Software or Offerings and Client’s appropriate measures to prevent loss or theft of Client data; (b) operating, controlling, and maintaining Client equipment, infrastructure, and connectivity required to use the Software or Offerings; and (c) applying patches, bug fixes, upgrades, and updates to any third party software, systems, or integrations (“Third Party Materials.”) Cyware is not responsible for any injury or damage to any persons or property resulting from use of Software or Offerings. Client will take precautions to ensure that persons and property are not harmed in the event of an error, malfunction, or unexpected operation of the Software or Offerings. 

7. Indemnification. 

7.1 Cyware Indemnity. 

7.1.1 Subject to the terms and conditions set forth in this Agreement, Cyware will indemnify, hold harmless, and defend Client, successors and assigns (and its and their officers, directors, employees, contractors, customers, and agents) from and against any and all third-party claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) awarded to a third party by a court of competent jurisdiction or in a settlement approved by Cyware which arise out of or relate to third-party claims or threat thereof against Client (a “Cyware Indemnity Claim”) alleging that Client’s use of the Offerings in accordance with the terms of this Agreement infringes any United States copyright or United States patent. Cyware’s obligations under this Section are conditioned upon (i) Cyware being promptly notified in writing of such Cyware Indemnity Claim, (ii) Cyware having the exclusive right to control the defense and/or settlement of the Cyware Indemnity Claim, and (iii) Client providing reasonable assistance in the defense of the Cyware Indemnity Claim. In no event will Client settle any Cyware Indemnity Claim without Cyware’s prior written approval. Client may, at its own expense, engage separate counsel to advise Client regarding a Claim and to participate in the defense of the Cyware Indemnity Claim, subject to Cyware’s right to control the defense and settlement.

7.1.2 Mitigation. In the event of any such third party Cyware Indemnity Claim or threat thereof, Cyware, at its sole option and expense, may (i) procure for Client the right to continue to use the allegedly infringing Offerings, (ii) replace, or modify or remove the infringing feature from the Offerings with functionally equivalent software and/or Offerings, or (iii) terminate this Agreement with respect to the allegedly infringing Offerings and the license thereto granted hereunder, upon fifteen (15) days written notice to Client.

7.1.3 Exclusions. Notwithstanding anything to the contrary in this Agreement, Cyware will have no obligations to Client pursuant to this Section 7.1 (Cyware Indemnity) with respect to any infringement, alleged infringement, or loss of Services or any other breach of terms of this Agreement resulting or arising from (i) any modifications to the Offerings made by any person or entity other than Cyware that is not approved in advance by Cyware, (ii) any use of the Offerings by Client beyond the scope of the express rights and licenses granted in this Agreement, (iii) any use of the Offerings in combination with other offerings, software, hardware or data (including Third-Party Products), (iv) Cyware’s compliance with Client’s request for changes to the Offerings or with Client’s designs, specifications or instructions, or (v) Client Content (including Section 4 above).

7.1.4 THE FOREGOING STATES THE ENTIRE LIABILITY OF CYWARE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE OFFERINGS, AND CLIENT HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF CYWARE WITH RESPECT THERETO.

7.2 Client Indemnity.

7.2.1 Indemnity. Client will indemnify, hold harmless, and defend, Cyware, its licensors, successors and assigns (and its and their officers, directors, employees, contractors, customers, and agents) from and against any and all third party claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) awarded to a third party by a court of competent jurisdiction or in a settlement approved by Client which arise out of or relate to (i) any and all third party claim or threat thereof against Cyware (a “Client Indemnity Claim”) that the Client Content or Client System (and the exercise of the rights by Cyware granted herein with respect thereto) infringes any applicable copyright or patent; (ii) any breach or alleged breach by Client of any of its covenants, representations or warranties set forth in this Agreement or (iii) any liability associated with the access, use or processing of said Client Content within Cyware’s Offerings, as it relates to the safety and reliability of such data, including any third-party data included in Client Content by Client, or use/integration of third-party data including but not limited to the use of Third-Party Products, before or during access of Cyware Offerings. Client’s obligations under this Section are conditioned upon (a) Cyware being promptly notified in writing of such Client Indemnity Claim; provided, however, that the failure to give such notice will not relieve Client of its obligations hereunder except to the extent that Client was actually and materially prejudiced by such failure, (b) Client having the exclusive right to control the defense and/or settlement of the Client Indemnity Claim, and (c) Cyware providing reasonable assistance (at Client’s request and expense) in the defense of the Client Indemnity Claim. In no event will Cyware settle any Client Indemnity Claim without Client’s prior written approval, not to be unreasonably withheld or delayed. Client may not settle any claim for which indemnification is sought under this Section without the prior written approval of Cyware, which approval will not be unreasonably withheld or delayed.

7.2.2 THE FOREGOING STATES THE ENTIRE LIABILITY OF CLIENT WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE CLIENT CONTENT OR CLIENT SYSTEM, AND CYWARE HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF CLIENT WITH RESPECT THERETO.

8. Limitation of Liability.

8.1 No Consequential Damages. NETHER PARTY OR ITS LICENSORS WILL BE LIABLE TO THE OTHER HEREUNDER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST OR CORRUPTED DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE, OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION, OR USE OF THE OFFERINGS, OR SUPPORT OFFERINGS, OR RESULTS THEREOF. CYWARE WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR OFFERINGS.

8.2 Limits on Liability. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING, BUT NOT LIMITED TO, ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION, AND BREACH OF WARRANTY) WILL NOT IN THE AGGREGATE EXCEED THE FEES ACTUALLY PAID BY CLIENT TO CYWARE UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE DAMAGE RELATING TO THE FIRST CLAIM MADE IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 8.2 WILL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CLIENT UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.

9. Miscellaneous.

9.1 Notices. Whenever, under the terms of or in connection with this Agreement, any notice, consent, approval, authorization or other information is proper or required to be given by either Party, such notice, consent, approval, authorization or other information will be in writing and will be given or made by reputable overnight courier with documentation of receipt to the intended recipient thereof or by registered or certified mail, return receipt requested, and with all postage prepaid, to the address set forth in the signature block of this Agreement.  Notices to Client will also be sent to the Client’s designated business e-mail contact.

9.2 Amendment; Waiver. This Agreement may be amended or supplemented only by a writing that is signed by duly authorized representatives of both parties. No term or provision hereof will be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. 

9.3 Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision will be amended to achieve, as closely as possible, the economic effect of the original term and all other provisions will continue in full force and effect.

9.4 Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement will be governed by and construed under the laws of the United States and the State of Delaware as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws, rules, or principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. For any disputes arising out of this Agreement, the Parties consent to exclusive jurisdiction and venue in the state and federal courts located in the State of Delaware.

9.5 Dispute Resolution and Trial Waiver. Disputes between the Parties that cannot be resolved informally, will be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the AAA (“Rules”) in effect as of the Effective Date, by one arbitrator who both Parties agree is qualified to hear the Parties’ dispute and is an attorney admitted to and is in good standing to practice law in the State of Delaware in accordance with Rules (the “Panel”). The Parties agree that by entering into this Dispute Resolution term, that this will constitute a full and final waiver of trial by judge or jury as it relates to this Agreement and the Offerings.

9.6 Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, pandemic, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; hacking or other system-related attacks, war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such Party of this Agreement); or any other event beyond the reasonable control of the Party whose performance is to be excused.

9.7 Assignment. Client may not assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without Cyware’s prior written consent, not to be unreasonably withheld. Any purported assignment or transfer in violation of this Section will be void. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.  Cyware may retain advisors, third-party consultants or subcontractors to perform Cyware’s obligations under this Agreement provided that Cyware will continue to be directly and primarily liable to Client for its obligations under this Agreement.

9.8 Relationship of the Parties. Cyware is an independent contractor of Client, and not an employee or designated subcontractor of any kind. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither Party has the authority to bind the other or to incur any obligation on its behalf. 

9.9 Counterparts; Electronic Signatures. This Agreement may be executed in two counterparts, each of which will be deemed an original, but both of which together will constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory hereto will be bound until both the parties named below have duly executed or caused to be duly executed a counterpart of this Agreement. Signatures of the parties made or exchanged by electronic means will be binding.

9.10 Entire Agreement. This Agreement and all hyperlinks incorporated by reference, including all Ordering Document(s), and Schedules to this Agreement, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. No Client purchase order will serve to amend or addend this Agreement or any Ordering Document in any manner. Any terms and/or conditions contained in a Client purchase order, or any other document are considered null and void immediately upon receipt by Cyware. 

9.11 No Solicitation. Client agrees that, during the term of this Agreement, and for a period of one (1) year following the termination of this Agreement, Client will not directly solicit for employment the employees, contractors or similar personnel of Cyware without Cyware’s prior written consent; provided that it will not be a violation of this clause for Client to make general solicitations and job postings of any nature so long as they are not directed specifically at employees, contractors or similar personnel of Cyware.

9.12 Equitable Relief. Each Party acknowledges that a breach by a Party of Section 3 (Confidentiality) or Section 4.6 (Ownership/Intellectual Property) may cause the non-breaching Party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching Party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching Party may be entitled at law or in equity. Such remedies will not be deemed to be exclusive but will be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.

9.13 Export. The Offerings utilize software and technology that may be subject to applicable laws that regulate and restrict the use, release of goods, software, technology, or Offerings to (i) foreign countries and (ii) foreign persons, Client acknowledges and agrees that any exports of Cyware Offerings, services, or technical data are subject to any applicable export control laws and regulations. The Client shall comply with all such laws and obtain any necessary licenses or approvals for import, use, or re-export. Cyware reserves the right to refuse or cancel any transaction prohibited by these laws. By using the Offerings, Client represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National and shall not permit or grant access to the use of the Offerings in such regions. Client agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Cyware and its licensors make no representation that the Offerings are appropriate or available for use in other locations. Any diversion of the products, technology, software, and/or data contrary to law is prohibited. None of the products, technology, software, and/or data, nor any information acquired through the use of the Offerings is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

9.14 Public Announcements. Neither Party will issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent will not be unreasonably withheld, conditioned or delayed. Either party may include the other party’s name and logo and other indicia in its lists of current or former clients or service providers in promotional and marketing materials, in compliance with the logo and trademark use guidelines of the respective party.

9.15 Remedies. Except as specifically provided otherwise in this Agreement, the Parties’ remedies under this Agreement are cumulative and not exclusive.

9.16 Purchase through Reseller, Partner, or Distributor. If Client receives the Offerings through a Cyware authorized reseller, partner, or distributor, all fees and other procurement and delivery terms will be agreed between Client and the authorized reseller, partner, or distributor; however, the terms set forth in this Agreement and the relevant Order regarding Client's use of the Offerings remain applicable. For clarification, Client's agreement with the authorized reseller, partner, or distributor is between Client and the authorized reseller, partner, or distributor and is not binding on Cyware; however, all Offerings use terms (and their flow downs) are binding on all parties involved in the transaction.

CYWARE SOFTWARE SCHEDULE

The Parties hereby acknowledge and agree that this Cyware Software Schedule (“Software Schedule”) is made and effective as of the Effective Date by and between Cyware and Client. This Software Schedule is incorporated into, and made a part of, the Agreement.

1. Subscription Fees. Client will pay to Cyware the subscription fees and charges for the Offerings set forth in, and for the term as set forth on, each applicable Ordering Document (the “Subscription Fees”). Except as otherwise specified in an Ordering Document, Subscriptions and Subscription Fees are non-transferable, non cancelable, and the subscriptions purchased cannot be decreased during the term of the applicable Ordering Document. Subscription Fees may increase on renewal in accordance with industry standard index pricing at that time, or upon annual use review under a license usage-based model.

2. Access and Use. 2.1 Agreement. Subject the terms and conditions in this Agreement, Cyware provides proprietary software applications and other Offerings offered by means of Cyware’s software-as-a-service platform to which Client is subscribing to pursuant to this Software Schedule and the applicable Ordering Document (“Software”) in accordance with Documentation. Software is included within the Offering definition. “Documentation” means any proprietary user documentation made available to Client by Cyware (excluding Confidential Information as defined herein) for use with the Software, or any other products or Offerings provided or made available by or on behalf of Cyware or any of its Affiliates, including any documentation available online or otherwise, as amended or updated by Cyware from time to time in its discretion.

2.2 Access Grant. Client may use the Software during the term of the applicable Ordering Document for its own internal business purposes, unless otherwise mutually agreed upon in writing based on business need of Client. This use includes the right to copy and use the Documentation as part of Client’s permitted use in accordance with its subscription. Client will at all times comply with the Documentation when accessing or using the Software.

2.3 Users. Client is responsible for managing its User accounts, for its Users’ actions through the Software, and for their compliance with this Agreement. Client will ensure that Users keep their login credentials confidential and will promptly notify Cyware upon learning of any compromise of User accounts or credentials. Client will cause all Users to comply with all representations, warranties, covenants, and obligations of Client under this Agreement. Client is responsible and liable for any breach of this Agreement by, or caused by, any User.

2.4 Affiliates. Client’s Affiliates may serve as Users under this Agreement, provided that such use is connected with Client’s business operations and not such Affiliate’s business operations. Client’s Affiliates must enter into their own Ordering Document(s) with Cyware if such Affiliates desire to access and use the Software for their own business purposes.

3. Hardware and Software.

3.1 Cyware Hosted.

3.1.1 Cyware is responsible for (i) obtaining, deploying, and maintaining the Offerings; (ii) contracting with third-party cloud provider, and any other service providers required to allow access and use of the Software; and (iii) paying all third party fees and access charges incurred in connection with the foregoing, excluding charges related to exceeding any defined consumption limits. Except as specifically set forth in this Agreement or an Ordering Document, Cyware will not be responsible for supplying any hardware, software, integrations, or applications, or other equipment to Client under this Agreement.

3.2 Client Hosted.

3.2.1 Client is responsible for (i) obtaining, deploying, and maintaining the Client System, and all computer hardware, software, network and other communications equipment necessary for Client and its Users to access and use the Software in the hosted environment; (ii) contracting with third-party cloud provider, and any other service providers to access and use the Software; and (iii) paying all third party fees and access charges incurred in connection with the foregoing.

3.2.2 Client is responsible for providing and maintaining all hardware necessary to deploy and operate the software, logical and physical security for all server and network components, designing and maintaining data backup, restoration, and disaster recovery processes, maintaining the database and operating system, including vulnerability and maintenance patching, and any failover activities and/or processes to execute a failover in a disaster recovery scenario.

3.2.3 Any Client-hosted instance will require compliance with the Cyware Decommissioning Policy at the end of the Term.

4. Support Offerings.

4.1 Performance and Term . Subject to the terms and conditions of this Agreement, following the subscription start date as set forth in the applicable Ordering Document (not to exceed fourteen (14) calendar days from the earlier of date this Software Schedule becomes effective or the Subscription Services Start Date on the Order (“Subscription Start Date”) and continuing throughout the Software term set forth in the applicable Ordering Document) Cyware will provide the Support Offerings (defined below) for the Software as described in the Support Offerings Annex. End of life for specific Software solutions is set forth in the Documentation. “Support Offerings” means the standard Software support provided by Cyware to its clients.

5. Subscription Term.

5.1 The Ordering Document will set forth the Subscription Term. Within thirty (30) days of the Subscription Start Date, Cyware will provide Cyware’s standard integration, testing, and training in connection with the initial production deployment of the Software. Such service will not exceed fifteen (15) hours of time, unless otherwise set forth in the applicable Ordering Document (“Standard Integration”). Playbook drafting or other delivery, implementation, installation, or extended training, provided by Cyware to Client in connection with the Software (“Professional Offerings”) will be addressed under a separate document.

6. Order of Precedence. In the event of a conflict between this Software Schedule, this Agreement, and any other Schedule, including any Annex of any Schedule, the, the following order of precedence will apply:

6.1 The Applicable Ordering Document

6.2 General Terms & Conditions

6.3 This Software Schedule

6.4 Support Offerings Annex